Griffin v. Lynch

• Decision Date: 13 June 1861
• Citation: 16 Ind. 396
• Parties: Griffin and Others v. Lynch and Another
• Court: Indiana Supreme Court

16 Ind. 396

Griffin and Others v. Lynch and Another

Supreme Court of Indiana

June 13, 1861

APPEAL from the Tippecanoe Circuit Court.

The judgment is reversed, with costs. Cause remanded.

S. A Huff, Z. Baird, J. M. LaRue, J. E. McDonald and A. L. Roache for the appellants.

R Jones and R. C. Gregory, for the appellees.

OPINION

Perkins, J.

Suit for partition. The facts of the case are, that Patrick Kelly died testate, having, after giving a legacy of $ 200 to a sister, disposed of his property thus:

"Fourthly.--I give, bequeath, and devise, unto my beloved wife, Margaret Kelly, one third part of my real estate, in fee simple, and the amount of personal property to which she may be entitled by law, as my widow; such realty and personalty to be taken and held by her in lieu of what she would be entitled to by law, had I died intestate, and to be in full of her share and interest in my estate; and to my daughters, Ann Lynch, wife of John Lynch, Mary Ellen Kelly, and Catherine Kelly, each, one third of the residue of my estate, real, personal and mixed, to be held by them as tenants in common in fee simple, share and share alike: Provided, that should my said wife, Margaret Kelly, hereafter be delivered of a child, or children, begotten by me, then all my said estate shall belong to, and be held, (except the share above allotted to the said Margaret,) by the said Ann Lynch, Mary Ellen Kelly and Catherine Kelly, my daughters, and such child or children, in equal shares; and upon the decease of any of said devisees, then the said residue of my estate to be divided equally among the survivors, or their descendants, or held by them as tenants in common in fee simple, as circumstances may legally require.

"Fifthly.--I hereby authorize and empower my executors to take and retain possession of the real estate of which I may die seized, except the said share of my widow, and to make such repairs and improvements thereon, as to them may seem proper, and apply the rents thereof, after paying expenses, and for such improvements and repairs, to the payment of said debts and legacy, and afterward to pay the residue to my said devisees, or their guardian, according to their interests in said property; but the right to retain such possession shall not extend beyond the time at which my youngest child, said Catherine, shall attain the age of twenty-one years."

The testator had no other child by his wife Margaret; but at his death left those named in the will surviving him. The will was probably drawn some time before the testator's death, so that he might...